Following unsuccessful judicial challenges on human rights grounds to the household benefit cap and to mandatory work placements, Mark Simpson of Ulster University considers whether the fundamental right to human dignity is respected by a third pillar of the UK’s ‘welfare-to-work’ regime – Jobseeker’s Allowance sanctions

Human dignity is a fundamental concept in human rights law, whose protection is arguably the objective of all human rights. Although a precise definition can be elusive, Christopher McCrudden (writing in the European Journal of International Law) proposes that dignity demands: protection from inhuman and degrading treatment, ability to meet one’s essential needs, individual autonomy and protection of cultural identity.

In conditional social protection regimes, access to an income sufficient to meet one’s essential needs and to participate in cultural activities may be restricted, claimants’ autonomy may be curbed and severe hardship may be experienced if benefits can be suspended for a prolonged period. Questions about the ability of a highly disciplinary welfare state to protect citizens’ dignity are particularly relevant in the UK, where the sanction for non-compliance with conditions associated with a benefit can be a total loss of income, after housing costs, for up to three years.

Particular concern may be raised about the ability of claimants subject to sanctions to meet their essential needs. This raises issues of compliance with article 8 of the European Convention on Human Rights, which protects children (but not adults) from destitution, and article 1 of the first protocol to the Convention (P1-1), which protects the peaceful enjoyment of possessions, including social security entitlements.

Do the children of claimants who are subject to sanctions experience destitution? A lone parent of two children whose Jobseeker’s Allowance is stopped would receive £148.40 per week in child tax credits and child benefit (2013-14 rates). By way of comparison, the High Court has held that an income of £149.96 per week would leave an asylum seeking lone parent destitute because its level did not take into account all essential needs and had not been uprated with inflation for two years. A permanent resident lone parent would have additional costs – energy and, normally, a contribution to council tax – therefore the income required to meet her essential needs would be higher still.

If a hardship payment were awarded, the lone parent would receive a total of £191.82 per week, comfortably above the destitution threshold, but, at just 41% of median income, almost £90 below the relative poverty line. While there may be compliance with article 8, whether the state respects its obligation under the Convention on the Rights of the Child to make the best interests of the child a “primary consideration” in decisions affecting his or her welfare may be more questionable.

P1-1 does not oblige the state to provide social security benefits, but when it does so citizens’ enjoyment of their benefits must not be subject to disproportionate or arbitrary interference. David Webster argues that there is a ‘grotesque disproportion’ between the severity of sanction available and the failures for which they are imposed.Submissions to the Oakley review of Jobseeker’s Allowance sanctions reinforce Webster’s point through numerous examples of sanctions imposed for falling marginally short of jobseeking obligations or missing appointments due to simple error, family emergencies, communication failure or even a clash with a job interview.

The European Committee on Social Rights has further held (in response to a complaint against deductions from family benefit in France) that sanctions may be disproportionate if unlikely to achieve their intended purpose and, separately, that children should not be exposed to ‘unfit living conditions’ because of the actions of their parents. With social researchers far from agreed that sanctions are an effective tool of welfare-to-work policy, in particular that effectiveness increases as severity increases, and children inevitably affected by significant reduction of household income, these judgments further call into question the proportionality of sanctions, although the European Social Charter (on which ECSR provides oversight) cannot be relied on in the UK courts.

Arbitrary interference with the citizen’s right under P1-1 may occur if benefits are stopped without adversarial proceedings or access to a meaningful appeal process. This is precisely what may occur with Jobseeker’s Allowance sanctions – benefit payments may be suspended while a sanction is being considered, before any decision maker has determined that a breach of conditionality actually occurred. Thereafter, Webster argues that the appeal process is out of many claimants’ reach because they may not be informed of the reason for their sanction or their right to appeal. Michael Adler suggests the recently-introduced requirement to request reconsideration of the sanction by DWP staff before an appeal may be lodged places further hurdles in claimants’ path.

Two key elements of the post-2007 ‘welfare reform’ agenda – mandatory work placements and the household benefit cap – have survived legal challenges on the basis of their human rights compliance. Question marks hang over the compatibility of the Jobseeker’s Allowance sanction regime with key human rights provisions, and therefore with the ability of the system to protect human dignity. Judicial clarification of these important matters is urgently needed.

Mark Simpson is a PhD candidate at Ulster University (School of Law). This post draws on an article published in the European Human Rights Law Review (issue 1, 2015). Research completed under the supervision of Gráinne McKeever and Ann Marie Gray and with the aid of a fieldwork grant from the Socio-Legal Studies Association.

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You also have an exact and clear idea of how all this affects people who are actually caught up in it. Unfortunately, the people who are responsible for these policies and decisions have never had to deal with it so there is no understanding and no empathy. We are losing our humanity in today's society.

Why would people then bother to make a home and spend money on it? We have to get away from this mindset that has now taken hold that Social Housing.....hate that term, is just temporary to suit your immediate needs. People should not have to up sticks all the time because a child gets older etc. When the old system was in place ie older people with larger homes than they needed they were offered incentives to downsize. In the 90's more Older peoples accommodation was built. Bungalows, Sheltered Housing etc. People were given help with removal costs. This has all changed. To make someone move from a home they have been in for years is cruel if it is not voluntary. I have been in my home since it was built. My daughter moved out as she should when grown up to make her own home. So after 23 years with roots well and truly down, should I be made to move? I have my granddaughter to stay. My daughter's room is now for her and was also an office when I worked from home. I could not fit my home into a small 1 bedroom flat. I do not want people living above me. This idea that if you live in Social Housing it is just accommodation but if you own it is your home is totally wrong. My parents moved willingly into Sheltered Housing but the change affected them drastically. My dad became stressed and ill and died a year later and my mother never settled and died a few years later. This was because they uprooted themselves and left their home and all the memories and familiar surroundings. Unfortunately like most issues these days, the humanity is being taken out of it.

Great resources on linking welfare sanction and conditionally and key social policy considerations with human rights principles (including dignity, non-discrimination). These considerations have a huge impact in narratives around poverty and vulnerability, and should be closely looked at by policy decision-makers and street-level bureaucrats.

Ok. I don’t agree with the bedroom tax but I do feel it would be a better option if housing rules were changed. For example why do they wait until kids are over 10 until giving families two bedrooms?
Then I also think housing should be fit for purpose so I believe when they move someone from a one bedroom to a 2 or 3 it should be with the understanding only until the children grow up and leave home then they should have their Tennancy moved back to something more suitable again like a one bedroom.

A fine well written and clear example of what is broken in our welfare system.
They are asking for submission for the next select committee meeting on welfare and I would submit this post if it were my choice.
It is a vicious cycle for some who have no chance of finding work however hard they might try. It is the employers who ultimately make the decision if employees are fit and ready to work, not the DWP.
Having a budget of £2 per day for food , job searching activities, keeping your appearance and strength up, and having to jump through hoops and tick boxes on all those strength zapping, soul destroying schemes courses and programs that do nothing but heap yet even more pressure and stress.
The affects of stress on both mental and physical health are well documented and nothing can be more stressful than not knowing week in, week out, that your hand to mouth existence is constantly at risk.
Sanctions are death sentences for some, no getting away from that fact, those charged with administrating the regime should hang their heads in shame, it is those who should make the stand to bring about change.
Or do they deceive themselves into believing long time shirker Jim who they sanctioned last month and who has not been seen again at the local JCP, Is now enjoying the fruits of his labor thanks to the Works Coaches helpful push they so desperately needed.
So clearly sanctions work and a good done job done by me, high five everyone.